The ST Andrews Environmental Protection Association Limited

The Association has been set up with the aim of protecting the environment of St Andrews and North East Fife.

Scottish Government consultation on the future
of the Scottish Planning System



STEPAL made the following submission

Question 12 (a)
    Should requirements for pre-application consultation with communities be enhanced?

Answer:
    Yes

Please explain your answer:
This could avoid some of the horrendous fallout when local people's views are not taken into account and the only recourse for them is Judicial Review - see below.

As an environmental organisation recently involved in a Judicial Review concerning a planning application which was judged by the court as being unlawful and was quashed, we have experience which is directly relevant to the issue of a "third party" or "equal" rights of appeal. While we generally support the intention of the consultation document to engage communities more effectively at an earlier stage in the planning process, we have significant problems with the view that communities, and community bodies should have no right of appeal to the DPEA in all circumstances.

The only remedy currently available to individuals and community groups where a planning decision is made which is perceived to be faulty, is to embark on a Judicial Review. Such a review is very costly and can take two years or more for the process to be completed. Even with a protected expenses order, the cost to the applicant can be 100,000, and more if the judicial appeal is lost. Justice at this cost is no justice at all. When bad planning decisions are imposed on an area with limited resources, such as some deprived areas, the route to justice becomes even more difficult.

The Aarhus Convention provides for "affordable access to justice" for individuals and community bodies opposing decisions which affect the environment, but this is not delivered in practice as the above costs (which relate to an environmental appeal) clearly demonstrate.

A major issue of the Judicial Review procedure is that the merits of the planning decision cannot be considered by the court, but only the procedure by which it was arrived at. This is in direct contrast to the DPEA appeal process where compliance with the development plan is the main consideration.

There is a convincing narrative which supports a view that the current situation does not accord with the provisions of the EU/UN Conventions of Human Rights in relation to access to an independent and fair appeal process. It also appears to be in contravention of the Aarhus Convention when applied to environmental appeals.

While we believe that there should, in certain defined situations, be a limited right of appeal for community groups and individuals through the DPEA process, we do not see such appeals as likely to become numerous or vexatious if sufficient safeguards are built in. Neither do we see these as inhibiting early
decision-making - the judicial appeal process takes much longer.

Having successfully challenged a local authority in respect of its decision for one of its own planning applications in the Court of Session, we are acutely aware of the problems associated with this process. The objectivity, and separation of the interests of the authority as applicant and as planning authority was a key issue in the judgement arrived at by the Inner House to quash the planning permission for a major school project in Green Belt. The cost to the Council of resourcing its defence was not inconsiderable. The delay of almost four years in starting a much needed school was another outcome which neither party to the action would have wished for. Yet this was the only avenue possible to secure an objective judgment for a proposal which if implemented, would have had serious adverse environmental and social effects lasting for half a century or more.

We would not propose a right of appeal to the DPEA in all circumstances as is currently available to applicants as of right, but a right for community individuals and groups in the following circumstances:

  1. When the local authority is both applicant and decision-maker and there is a substantial body of objections, including objections from community organisationsand the community council for the area. "Substantial body" would require to be defined.
     

  2. When the proposal is significantly contrary to the local plan and there is a substantial body of objections as noted above.
     

  3. Where it can be demonstrated that serious procedural irregularities or failures have taken place in the process, including failure of correct notifications, and as above, there is a substantial body of objections.

Without such a process being available, the community becomes devalued in the planning process as its interests are seen to be less important than the aspirations and plans of developers. This devaluation is evident when planners perceive that meeting developer interests is more important than community
concerns, if only because they are less accountable to communities because developers have have a virtually unrestricted and no cost access to a planning appeal process if they are displeased with a planning decision.

Finally, we would submit that there is not sufficient confidence in the consistency of decisions made by local review bodies to conclude that this is viable a way of removing appeal pressures from the DPEA. Restricting the grounds of appeal and/or introducing a fee structure for applicant's appeals would be more effective in achieving this objective.

 


Evaluation
Please help us improve our consultations by answering the questions below. (Responses to the evaluation will not be published.)

Matrix 1 - How satisfied were you with this consultation?:
Neither satisfied nor dissatisfied

Please enter comments here:
Our response has been limited to the area with which we have been concerned over the last three years and about we know most, and we feel therefore that our experience could be valuable in examining the particular issue of local participation in major planning decisions. The planning application which we took to Judicial Review was turned down by the local area planning committee and had this decision stood, the whole ensuing process would not have been necessary, saving not only a lot of time but also a lot of money.

Matrix 1 - How would you rate your satisfaction with using this platform (Citizen Space) to respond to this consultation?:
Very satisfied

Please enter comments here:
We trust that our comments will be taken into account in that we speak from hard experience.

Sandra Thomson
on behalf of The St Andrews Environmental Protection Association

4 April 2017

 

 


Contact Details:
 

Association Chairman
 
chair@stepal.org
 
Association Secretary
 
secretary@stepal.org
 
Association Treasurer
 
funds@stepal.org
 

 

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